Orme, David Dallas v Sherrin Hire

[1997] FCA 1342

FEDERAL COURT OF AUSTRALIA

LIMITED DISTRIBUTION

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - ONUS OF PROOF - VALID REASON.

Workplace Relations Act 1996 (Cth) s 170DE

DAVID ORME v SHERRIN HIRE
TI 1008 of 1997

MURPHY JR
DEVONPORT
14 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
DEVONPORT DISTRICT REGISTRY	TI 1008  of   1997

BETWEEN:	DAVID ORME APPLICANT
AND:	SHERRIN HIRE RESPONDENT
JUDGE:		MURPHY JR
DATE OF ORDER:		14 NOVEMBER 1997
WHERE MADE:		DEVONPORT

THE COURT ORDERS THAT:

1. The application is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
DEVONPORT DISTRICT REGISTRY	TI 1008 of 1997

BETWEEN:	DAVID ORME APPLICANT
AND:	SHERRIN HIRE RESPONDENT

JUDGE:	MURPHY JR
DATE:	14 NOVEMBER 1997
PLACE:	DEVONPORT

REASONS FOR JUDGMENT

INTRODUCTION

Courts and tribunals are strange and difficult places for lay people.  Mr Orme, the applicant in this proceeding, represented himself.  He alleged that his employment had been unlawfully terminated by Sherrin Hire.  He did a creditable job in presenting his case.  Sherrin Hire, represented by Mr Crisp, carries the onus of proof that it had a valid reason to terminate the applicant’s employment.  The evidence that both sides presented was inadequate in a number of respects, and leaves the Court with a difficult task. 

In any employment relationship the law requires each party to co-operate with each other so that each can gain the benefits of the contract.  The particular requirements as to what each party must do at any one point cannot be laid out in advance but they are encompassed, in general, by a requirement that parties act in good faith.  An employer must be good and considerate to its employees.  The employee must co-operate with the employer, and obey reasonable directions or orders.  Here Sherrin alleges that the applicant failed to obey two important safety rules.  These were that he wear chaps when using chainsaws, and that he wear full length clothing when working on the HEC contract.  Both of these requirements were imposed on Sherrin under the terms of its contract with the HEC, and as a matter of common sense.

The central issues in the proceedings were first whether these were the rules;  second, whether the applicant knew they were the rules;  third, whether the applicant breached the rules;  and, fourth, whether the breach entitled Sherrin to dismiss the applicant. 

I will not repeat all the evidence such as it was on these issues.  The evidence of Mr Donoghue, Mr Steele and Mr Philpott was that the wearing of both full length clothing, and chaps, was part of the work requirements of Sherrin.  In his own evidence the applicant said that he was told to wear neck to knee clothing.  He also said that he wore chaps.  I am satisfied that he at all times knew that it was a requirement that these items of safety equipment be used.  He presented as an intelligent and articulate man, and I took from his evidence that he accepted the logic of these two safety measures.  This leads to whether Sherrin has satisfied the Court that the applicant breached these requirements.

It is important to note that it is not uncommon that employees do not comply with rules imposed on them by their employers.  Often this is without the knowledge of the employer.  Non-compliance can often be notorious in personal items of safety equipment such as earmuffs, protection glasses and clothing.  Here the evidence of Mr Donoghue was that he observed the applicant using a chainsaw wearing shorts and without chaps on 15 October. The applicant did not dispute that evidence.  Mr Donoghue reported the matter to the applicant’s supervisor.

The applicant disputed Mr Donoghue's evidence that he raised with him both the issue of shorts and chaps on that occasion.  I accept Mr Donoghue’s evidence as more probable.  His evidence was that full length clothing was a requirement of the HEC, and it is highly unlikely that when two basic rules were being broken by the applicant that he did not raise them both with him. 

On the following Friday the applicant told Mr Donoghue that he would have been wearing shorts had it have been a warmer day.  In his evidence the applicant stated that he told him he intended to continue to wear shorts.  The applicant’s evidence was that he did this as the only option available to have the respondent provide him with proper clothing.  In evidence was a report form which indicated that the applicant had been told on two previous occasions not to wear shorts.  The applicant disputed that evidence.  The report further states, consistent with the applicant’s own evidence, that he would continue to wear shorts in protest at the respondent not supplying work clothes.  The evidence as to the basis of the applicant’s protest and his actions in support of it was unsatisfactory and incomplete.

Mr Steele's evidence was that he was arranging for custom-made overalls to be supplied.  Sherrin had previously issued shirts and trousers.  Even if the applicant’s protest was to prevent damage to his own clothing, it put him in breach of the company and HEC requirements and he knew it.  He was dismissed on the Friday night.  He had indicated that he intended to continue to wear shorts as a protest.  That was common ground. 

The applicant gave evidence that he turned up for work on the following Monday and was dismissed again.  This evidence was unsatisfactory.  The applicant referred to negotiations with the union yet no evidence was led from any union officials.  The applicant did not lead any evidence that there was any agreement over the weekend to reinstate his employment.  On the evidence I am satisfied that the applicant was dismissed on the Friday, and it was on the grounds of his refusal to comply with the policy in terms of wearing wrist to ankle clothing. 

The next issue is whether the respondent was entitled to dismiss the applicant on this basis.  Here the role of the Court under the Workplace Relations Act 1996 (Cth) (“the Act”) must be clear. The employer must have a valid reason to terminate employment: s 170DE(1). That means one that is sound, defensible or well-founded. The Court does not substitute its views for that of the State manager who sacked the applicant. The Court considers whether it was open for him to act on the material before him and asks whether his decision was sound, defensible or well-founded.

Here the applicant knew that the safety clothing issue was regarded as serious by Sherrin.  The applicant had been told about it previously.  He also knew that wearing chaps was a requirement.  I am satisfied that the applicant also knew that the HEC regarded wearing proper clothing as a requirement that was important to it.  The applicant had been told this by Donoghue.  He had been told not to wear shorts on two prior occasions.  The Court cannot save the applicant from himself.

In circumstances where the applicant told Mr Donoghue that he intended to continue wearing shorts and where Mr Donoghue had indicated that this was unacceptable, he was breaching his duty to Sherrin to obey its orders and to co-operate in its contract with the HEC.  The applicant was protesting about the clothing issues.  The method he chose was inappropriate and, I am satisfied, provided a sound or defensible basis for Sherrin to dismiss him.  I must dismiss the application. 

ORDER:

1. The application is dismissed.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar MURPHY

Associate:        KAREN HALSE
Dated:             14 November 1997

The Applicant in person.
Counsel for the Respondent:	MR MICHAEL CRISP
Solicitor for the Respondent:	CREESE CRISP & FAY
Date of Hearing:	14 NOVEMBER 1997
Date of Judgment:	14 NOVEMBER 1997